BHAWANIPUR GUJARATI EDUCATION SOCIETY Vs. UNIVERSITY OF CALCUTTA

JUDGEMENT

(1.) THE judgment of the Court was as follows:-In the writ petition the Bhawanipur Gujarati Education Society, a society registered under The Societies Registration Act, 1961, is the petitioner No. 1. The petitioner No. 2 is its Secretary. The facts of the case are that the petitioner No. 1 in order to impart education, specially to gujaraties in West Bengal had established, in the year 1966, an educational institution-The Bhawanipur Education Society College (hereinafter referred to 'the College') in Kolkata. The management of the college is vested by the petitioner No. 1 in a Governing Body. The Governing body had been constituted in pursuance of the deed of the Society and in accordance with law which have been approved by the University of calcutta. It has been stated that from time to time on the application of the petitioners, the University authorities granted affiliation to the college in different subjects. On the' basis of such affiliation petitioners have been conducting B. Com and other courses. Every year the college starts the process of admission to the first year B. Com and other courses by distributing forms as per the directions of the University. Admissions are made on the basis of the criteria laid down by the University. List of students and other particulars of the admitted students are sent to the University for registration. Till date, particularly from 1998 to 2007, the authorities of the University have granted registration to such students without any demur or any objection of any kind whatsoever, thereby, in effect, approving, inter alia, the intake of students in the courses particularly in B. Com part-l. In the year 2000 the College applied for extension of affiliation of the College in the subjects B. BA, B. CA and B. Sc. in fashion design. In the form of application particulars were provided including the performance of the students in the B. A. , B. Com, B. Sc. Part-l and Part-ll (Honours and general ). The number of students admitted by the college during the years 1998 to 2007 for the B. Com (Honours) Part-l, inclusive of morning and everting shifts, ranged between 1913 to 2564. The percentage of pass in b. Com final examinations during the period 2004-2007 varied between 96. 76% to 98. 04%. It has been stated that by a letter dated 22nd May, 2008, the Secretary, Council for Undergraduate Studies of the University informed the Principals of all colleges affiliated to the B. A. B. Sc. B. Com. , b. B. A, B. Music, Degree Courses of the University to start admission process to the 1st year for the said courses including B. Com. (Honours/ general/major) for the Academic Session 2008-09 on and from 2nd June, 2008 as per schedule/conditions contained therein and admission should be started from 23rd June, 2008. Accordingly, the college started the admission process. Applications were received and processed and steps were taken for publishing the list of successful students and for starting the admission on and from 23rd June, 2008. Incidentally on 23rd May, 2008 an inspection team under the Inspector of Colleges, respondent No. 3 visited the college. By a letter dated 23rd May, 2008 the Deputy Inspector of Colleges, University of Calcutta on behalf of Inspecting team requested the Principal of the College to submit certain information and documents. The petitioner along with a letter dated 2nd June, 2008 submitted the documents. Thereafter, by letter dated 13th June, 2008 the Principal was informed by the respondent No. 3 that under the order of the Pro-Vice-Chancellor (Academic), respondent No. 2 dated 12th June, 2008 an inspection team of seven members would visit the college on 16th June, 2008 in connection with the fixation of intake capacity in B. Com (Honours and General) course of the college and the Principal was requested to keep ready all the information and documents required for the purpose. Thereafter, as scheduled, an inspection team visited the college and inspected the documents and records. According to the petitioners though during inspection the inspection team observed that they would be suggesting drastic reduction in the intake capacity for the B. Com Part-l course, however, no reason was disclosed for such suggestion. Thereafter, by letter dated 18th June, 2008 the petitioners highlighting the performance in B. Com final examinations requested the University to allo'w the college to continue with the present average intake as it was impossible to reduce the intake capacity since as a minority administered institution they had various commitments in different sectors of the society. A request was made to allow the college with the present average intake in B. Com (Honours) first year course. Assurance was given to rectify any lacunae which might be pointed out and the college was ready to carry out any infrastructure development, if recommended. However, on 20th June, 2008 the Principal of the college received a letter dated 20th June, 2008 of the respondent No. 3 enclosing a copy of the Inspection report dated 20th june, 2008 with a request to see that the admission of students in B. Com (Honours and General) course of the college was made in accordance with the intake of students as prescribed in the report which is the subject-matter of challenge. In terms of the said report, the total number of students for B. Com (Honours) Part-l course by the college had to be 300 students with 75 students per section which could be extended to 975 students in the event 25 full time and 18 part time new teachers were appointed by the petitioners. No reason or basis has been shown for arriving at such a conclusion although the respondents had all along approved the intake of students in the B. Com. (Honours ). Yet the college was required to reduce with immediate effect the student intake in B. Com (Honours) First Year course by approximately 85%. According to the petitioner the letter by the inspector of Colleges, the respondent No. 3 and the report dated 20th June, 2008 are arbitrary, illegal, mala fide, without and/or in excess of jurisdiction, without authority of law, unreasonable and perverse. When the admission process had been initiated and admissions were to start on or after 23rd june, 2008, the letter containing the decision and the report just one working day before the publication of the admission list was with a mala fide motive and with the ulterior purpose to stop the college from admitting students in the current academic session. Moreover, the order contained in the letter was passed in violation of principles of natural justice since it was passed without affording them an opportunity to deal with the same. Submission was there is no provision in The Calcutta University Act, 1979 (for short 'the Act') The Calcutta University First Ordinances, 1979 (hereinafter referred to as the 'first Ordinance') and the Calcutta University first Statutes, 1979 ('first Statute' for short) which empower the respondents to act in the manner-and pass order as has been done. Being aggrieved by the letter containing the order dated 20th June, 2008 and the report dated 20th June, 2008 this writ petition was filed.

(2.) THE matter was moved on 3rd July, 2008 when after hearing the learned Advocates for the parties directions were issued for filing of affidavits. Affidavits have since been exchanged and are on record. It is to be noted that on 22nd August, 2008 the learned Advocate on behalf of the University suo motu furnished from the records of the University a handwritten draft note dated 19th June, 2008 which was not appended to the opposition filed by the University. By an order dated 29th August, 2008 the respondent No. 3 was directed to file an affidavit by 2nd September, 2008 stating the reason as to why the note dated 19th June, 2008 was not made a part of the opposition affirmed by the said respondent on 8th July, 2007. On 1 st September, 2008 the said affidavit was affirmed and filed by the respondent No. 3. The petitioners have filed a written notes of arguments and a written note containing the submission of the respondents and answers thereto which are on record.

(3.) LEARNED Senior Advocate appearing on behalf of the petitioner relying on the statements made in the writ petition submitted that the notice and the report are incurably bad as the respondent No. 3 has no authority in fixing the intake capacity. Referring to Statute 72 (2) (b) (v) of the First statutes, it was submitted that the total number of students in a class or a combination of two or more classes or sections of a class should not exceed 150 or such other number as may from time to time be fixed by the syndicate. As the Statute, a subordinate legislation, does not provide for sub-delegation of power by the Syndicate to any person or authority, the inspection report fixing the maximum student strength of 75 in each section and the impugned order are illegal as ultra vires the Statute 72. Moreover, though Statute 76 requires compliance with the orders of the Syndicate by an affiliated college, there is no material disclosed in the report or in the impugned order or in the affidavits filed on behalf of the University to establish that the requirements of the said provisions have been satisfied. Further, the college was not given a specified period of time to take action in respect of the matter arising out of the report. Besides the report is also in violation of Ordinance 69 (1.) of the First Ordinance as there is no material to indicate that it was submitted to the Pro-Vice-Chancellor (Academic), respondent No. 2 for consideration and, thereafter, the respondent No. 2 with his suggestion and recommendation had forwarded the report to the syndicate. Though Syndicate is the ultimate decision making authority, no material has been disclosed by the University in its affidavit that powers conferred upon the Syndicate under Statutes 72 and 76 or under Ordinance 69 (1) can be delegated. Therefore, the action is a void act which cannot be cured by ratification, and ratification by post decisional hearing cannot cure an ultra vires action. Regarding the report it was submitted that though it is stated to be in the final form, it is still handwritten containing interpolation. Further the report and the order has to be judged on the face thereof and it cannot be supplemented by reasons contained in the affidavit. With regard to the handwritten draft note dated 19th June, 2000 it was submitted that there is no explanation in the supplementary affidavit why it was not annexed to the affidavit-in-opposition affirmed on 8th July, 2008. Submission was there is nothing in the draft note to show that an urgent or an emergent situation existed and there was formation of opinion on appraisal of facts on subjective satisfaction. The note in the draft note of the respondent No. 2 cannot be a prologue for taking emergency action. Further, there is nothing in the affidavits to demonstrate that action was either under the provisions of Section 9 (6) or under the provisions of the act, Ordinance or Statute. Moreover, in view of the provisions contained in the Calcutta University Act, 1979 and in the delegated legislations, the university Grants Commission (the minimum standards of instructions for the grant of the first degree through formal education in the faculties of arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and sciences) Regulations, 1985 (hereinafter referred to as the UGC. Regulations, 1985) are not applicable to the facts of the case.